CRIM-IMM LAW RESOURCES

 

Criminal convictions have direct and serious consequences for non-citizens. A conviction for a criminal offense may require a non-citizen’s removal (deportation), require that they are detained, make the person ineligible to legalize their status or ineligible for naturalization.  Criminal-immigration law is a complex and changing area of law requiring full analysis on a case by case basis.

RESOURCES FOR IMMIGRATION ATTORNEYS

Article by Maria E. Andrade, Avoiding Deportation Before Conviction in a World of Uncertainty: tips for working with defense counsel. 14-13 Bender’s Immigr. Bull. 2 (2009).

RESOURCES FOR DEFENSE ATTORNEYS

Defense counsel must advise defendants of immigration consequences.

On March 31, 2010 the U.S. Supreme Court issued its long-awaited decision in Padilla v. Kentucky.  In short, the case held that a defense attorney is not effective under the 6th Amendment where he or she fails to advise their client whether a conviction will cause adverse immigration consequences.  The decision casts new light on the meaning of the “collateral consequences doctrine, the notion that deportation proceedings are purely civil and raises questions about how much immigration advice defense counsel must provide clients. The case involved a long time Lawful Permanent Resident who plead guilty to an offense that guaranteed his deportation. Prior to entering the plea, Padilla’s lawyer told him that the plea would not affect his immigration status. For more information and analysis about this case, please see blog entries at the Supreme Court of Idaho, and U.S. Supreme Court blogs.  Briefs are available at the U.S. Supreme Court WIKI.

Quick Reference Charts:

On March 8, 2010, a panel of the Ninth Circuit Court of Appeals definitively held that an order reinstating a prior removal order that did not comply with due process cannot serve as independent basis for a criminal re-entry conviction under 18 U.S.C. sec. 1326.

“Today we express what we implied in Leon-Paz:  A successful collateral attack reinstatement of removal order precludes reliance upon a reinstatement of that same order in criminal proceedings for illegal re-entry.” U.S. v. Arias-Ordoñez, Mar. 8, 2010.

Defending Immigrants Partnership Network Library, a project of the National Legal Aid and Defender Association. Links to “quick reference” charts for AZ, CA, CO, CT, FEDERAL, FLA, ILL, IN, MD, MASS, NV, NC, NJ, NM, NY, OR, PA, TX, VT, VA, WA, WI and other resources.

Membership is required, but free.

New York State Defender Association’s Immigrant Defense Project

Links to “quick-reference” charts for offenses in NY, NJ, CT, VT

National Immigration Project of the National Lawyers Guild

Links to “quick-reference” charts for offenses in CA, IL, MASS, NJ, NY, VA

Law Offices of Norton Tooby

Mr. Tooby focuses upon criminal-immigration law.  His office offers a free newsletter as well as a premium membership to an expanded news letter and monthly case digest.  Mr. Tooby is the author of several books related to criminal and immigration law.

Immigrant Legal Resource Center maintains a page of free resources including checklists, analysis and charts. Click here to go directly to the page.

Ethical Rules & Guidelines

Ethical Rules regarding defense counsel’s obligation to advise defendant of immigration consequences are contained in the ABA Model Rules of Professional Conduct and the ABA Standards of Conduct for Pleas of Guilty.  See Standard 14-3.2 and comment, ABA Standards for Criminal Justice Pleas of Guilty, 3rd Ed. An update is due to come out this year.

Judicial Rules of Conduct are also relevant to the subject of criminal-immigration law, particularly the taking of guilty pleas.

Ineffective Assistance of Counsel Cases

A number of federal and state cases discuss defense counsel’s obligation to advise defendant of immigration consequences. Below are some of those cases:

Rubio v. State, 194 P.3d 1224 (Nev. Oct. 30, 2008)(may attack plea if based upon affirmative misadvice by defense counsel).

U.S. v. Kwan, 407 F.3d 1005 (9th Cir. 2004)(affirmative misadvice about immigration consequences is ineffective assistance, unclear if silence would sustain ineffective assistance claim).

New Mexico v. Pardez, 101 P.3d 799 (N.M. 2004)(defense counsel has affirmative duty to specifically advise defendant of immigration consequences of conviction).

U.S. v. Cuoto, 311 F. 3d 179 (2nd Cr. 2002)(failure to inform client of deportation consequences of plea may be objectively unreasonable).

States Requiring Judicial Advisal of Potential Immigration Consequences

In many states, judges now have an affirmative duty to advise the defendant that there may be adverse immigration consequences as a result of a plea as part of the courts duty to ensure that the plea is knowing and voluntary.

The following is a list of states that require a court to advise the defendant that the criminal conviction may cause adverse immigration consequences as part of the plea proceeding:

Ar. R.Crim.P. 11(c)(3)(C)

Ar. Rules of Court, rule 17.2(f)(2004)

Cal. Penal Code § 1016.5 (2006)

Conn. Gen. Stat. Ann. § 54-1j (2006)

D.C. Code 1981 Stat. § 16-713 (2006)

Fla. R. Crim. P. 3.172(c)(8) (2006)

Ga. Code Ann. § 17-7-93(c) (2006)

Haw. Rev. Stat. § 802E-2 (2005)

Mass. Gen. Laws Ann. ch. 278, §29D (West 1994)

Id. Crim. Rule. 11(d)(1)

Ill. Comp. Stat. 5/113-8 (2006)

Iowa R. Crim. Proc. 2.8(2)(b)(2005)

Me. R. Crim. P. 11(b)(5) (2006)

Md. R. 4-242(e) (Michie 2001)

Minn. Rule Crim. Proc. 15.10(d)(felonies), § 15.02(2)(misdemeanors)(2006)

Mont. Code Ann. § 46-12-210(f) (2005)

Neb. Rev. St. §29-1819.02 (2006)

N.C. Gen. Stat. § 15A-1022(a)(7)(2006)

N.M. Dist. Ct. R.Cr.P. 5-303(F)(5) (2006)

N.Y. Crim. Proc. Law § 220.50(7) (2006)

N.C. Gen. Stat. § 15A-1022(a)(7)(2006)

Ohio Rev. Code Ann. § 2943.031(2006)

Ore. Rev. Stat. § 135.385(2)(d)(2006)

R.I. Gen. Laws § 12-12-22 (2006)

Tex. Code Crim. Proc. Ann. Art. 26.13(a)(4)(2005)

Vt. 13 V.S.A. § 6565

Wash. Rev. Code Ann. § 10.40.200 (2006)

Wis. Stat. § 971.08(2) Stat. Ann. § 971.08(1)(c) (2006)

ALERT —

Below are some general guidelines that will not insulate every non-citizen from adverse criminal immigration consequences, but may prevent defense counsel from making avoidable mistakes.

    • If your client is a Lawful Permanent Resident and is convicted of an offense that is an “aggravated felony” under the Immigration and Nationality Act, the client must be removed (deported).
    • Any non-citizen who is convicted of an “aggravated felony” must be detained during his immigration proceedings.
    • A misdemeanor can be an “aggravated felony” for immigration purposes.
    • A sentence of less than 1 year is better for immigration purposes than a sentence of 1 year or more.
    • A “sentence” for immigration purposes includes all suspended time.
    • A “withheld judgment” pursuant to I.C. § 19-2601 is a “conviction” for immigration purposes.
    • Assume there is no safe drug-related conviction but if it cannot  be avoided, assume anything other than a first-time conviction of mere possession of fewer than 30 grams of marijuana. Assume paraphernalia convictions are drug convictions.